Thursday, July 21, 2005

Judge John 'Guarded' Roberts

Tuesday night at 9:00 PM EST, the Frogmarch Karl Rove Show was temporarily preempted to allow President Bush to reward his conservative base by nominating Judge John G. Roberts - who currently serves on the United States Court of Appeals for the District of Columbia Circuit - to replace retiring Supreme Court Justice Sandra Day O'Connor's open slot.

What does the G. stand for?

Evidently, G. stands for "Guarded" especially when it comes to Judge John Roberts' personal feelings on abortion.

Here are excerpts from some of the "Guarded" follow-up answers that Judge John Roberts provided to a few Democrat Senators on the Committee for Judiciary on February 5th, 2003 in regards to women's choice in connection with his "pending nomination" to the U.S. Court of Appeals (pdf file):

Senator Biden: "In Rust v. Sullivan (1990), even though the only question before the Supreme Court involved whether the government could censor recipients of government funding for family planning services from discussing abortion, you argued in a brief as Deputy Solicitor General that "[w]e continue to believe that Roe was wrongly decided and should be overruled." You further argued that "the Court's conclusions in Roe...find no support in the text, structure, or history of the Constitution." Intervening in a case such as this is at the discretion of the Solicitor General. Were you involved in the decision to intervene? If so, what role did you play and what position did you advocate?"

Judge Roberts: "Rust v. Sullivan did not involve a discretionary decision to intervene. The respondent in the case was Dr. Louis W. Sullivan, Secretary of Health and Human Services. Petitioners had succeeded in securing Supreme Court review of a decision in the Secretary's favor by the Second Circuit, and it was the obligation of the Office of the Soliciter General to represent the Secretary before the Supreme Court."

Senator Biden: "In Bray v. Alexandria, you argued on the Bush Administration's behalf that Operation Rescue protestors, who acknowledged that their goal was to "rescue" fetuses by physically preventing women from entering family planning clinics that provided abortions, could not possibly be considered to be engaging in invidious discrimination. Do you believe that to be true? If so, at what point do acts that affect only one segment - a protected segment - of the population, count as such discrimination?"

Judge Roberts: "Bray concerned the scope of 42 U.S.C. 1985 (3). In Griffin v. Breckinridge, 403 U.S. 88,102 (1971), the Supreme Court had prviously held that 1985 (3) requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." As the brief for the United States explained, that issue implicated the interests of the United States, both because various Acts of Congress excluding abortion services from federal programs would be subject to equal protection challenge if the Court were to rule that opposition to abortion is a form of gender-based discrimination, and because federal officers and employees are sued under 42 U.S.C. 1985 (3)."

.....

"If confirmed as a circuit judge, I would be bound to follow Supreme Court precedent in this area, without regard to my personal views. Nothing about my personal views would prevent me from doing so."

Senator Biden: "You also argued that such acts did not violate women's right to freely travel from state to state, even though many of the women involved had come from other states only to obtain abortions at the blocked clinics. Do you personally agree with this position? What is your reason for taking such a position? At what point would that type of activity cross the line into violating the right to travel freely? Would you take the same position if a group of KKK members physically blocked the entrance to a hotel on the borders of Mississippi, preventing African Americans from Alabama from staying there? Why?"

Judge Roberts: "In Bray, the brief for the Federal Government argued that the right to interstate travel is not violated simply because the actions of a private individual incidentally affect a party who has engaged in interstate travel. Instead, the brief explained that the right to travel is implicated only where there is an unequal distribution of rights and benefits among residents and nonresidents, or where it is proven that "a defendant intended to violate the [right to travel] as one of his principal goals." Because the abortion protestors attepted to disrupt the abortion activities related to residents and nonresidents alike, the Federal Government argued that the right to interstate travel was not implicated in that case."

.....

"If I were to be confirmed as a circuit judge, I would follow the Supreme Court precedent in this area. Nothing about my personal views could prevent me from doing so. I do not think I should answer hypothetical questions in areas that may come before me were I to be confirmed."

Senator Biden: "I'd like to ask you about the Freedom of Access to Clinic Entrances Act, passed by Congress on the heels of the Bray decision to protect clinics from the sort of harrassment at issue in the Bray decision. At the time FACE passed, about a year after the Supreme Court decision in Bray, did you have an opinion as to its constitutionality? If so, what was that opinion?"

Judge Roberts: "I do not recall having any opinion concerning the constitutionality of the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. 248, at the time that it was passed."

.....

"However given that particular constitutional challenges to the FACE Act could come before me as a judge if I were to be confirmed, I do not believe I should express any views on the Act other than to note that I would apply the binding precedent of the Supreme Court in assessing any such challenge."

Senator Biden: "Do you continue to believe that Roe was wrongly decided? Why or why not?"

Judge Roberts: "I do not believe that it is proper to infer a lawyer's personal views from the positions that lawyer may advocate on behalf of a client in litigation. To the extent the question about my "continuing" belief is based on the Federal Government's brief in Rust v. Sullivan, nothing about what my personal views were or are should be inferred from the fact that my name appears on the Federal Government's brief, as one of nine lawyers, in that case."

"The Supreme Court's decision in Roe is binding precedent, and if I were to be confirmed as a circuit judge, I would be bound to follow it, regardless of any personal views. Nothing about my personal views would prevent me from doing so."

Senator Feinstein: "In Griswold v. Connecticut, the Supreme Court recognized the constitutional right to privacey. It went ono to reaffirm and expand this right in Eisenstadt v. Baird. Following from these decisions, the Supreme Court then recognized constitutional protections for a woman's right to choose in Roe v. Wade.

(a) "Do you believe in and support a constitutional right to privacy?"

(b) "Please explain your understanding of a constitutional right to privacy."

(c) "Do you believe the constitutional right to privacy encompasses a woman's right to have an abortion?"

Judge Roberts: "If confirmed as a circuit judge, I would be bound by Supreme Court precedent recognizing the constitutional right to privacy. Nothing in my personal views or beliefs would prevent me from applying that precedent fully and faithfully."

"The Supreme Court's cases have recognized the right to privacy in a variety of contexts. The Court explained in Griswold v. Connecticut that the First Amendment "has a penumbra where privacy is protected from governmental intrusion....."

[Judge Roberts cites a number of court decisions up until Planned Parenthood v. Casey that recognize that "the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood."]

Senator Feinstein: "In Rust v. Sullivan, even though the question before the Supreme Court involved government funding for family planning services, you argued in a brief as Deputy Solicitor General that "[w]e continue to believe that Roe was wrongly decided and should be overruled." You further argued that "the Court's conclusions in Roe...find no support in the test structure, or history of the Constititution."

(a) "Mr. Roberts, do you continue to believe that Roe was wrongly decided?"

(b) "Do you continue to believe that Roe should be overruled?"

(c) "Do you continue to believe that the Supreme Court's decision in Roe have no support in the text, structure or history of the constitution?"

(d) "Do you believe the holding of Roe v. Wade is the settled law of the land?"

Judge Roberts: "I do not believe that it is proper to infer a lawyer's personal views or beliefs from the arguments advanced by that lawyer on behalf of a client. The argument advanced in the Rust brief reflected the existing position of the Federal Government as reflected in briefs filed in five previous cases. The Rust brief noted that the views expressed in those briefs continued to be the position of the Administratino. If that position were accepted, the challenge to the federal program in Rust would fail, which was why the position was noted in that case by the attorneys charged with the responsibility to defend the challenged federal program."

"Roe is the settled law of the land. If I am confirmed as a circuit judge, I would be bound to follow it. Nothing about my personal beliefs would prevent me from doing so."

Senator Kennedy: "In Rust v. Sullivan, although the only question before the Supreme Court pertained to government funding for family planning services, as Deputy Solicitor General, you argued in a brief that "[w]e continue t believe that Roe was wrongly decided and should be overruled." You went on to argue taht "the court's conclusions in Roe...find no support in the text, structure, or history of the Constitution."

"Mr. Roberts, the question of Roe's constitutionality was not before the Court - the issue was the constitutionality of implementing regulations governing Title X grant recipients put forth by the Secretary of Health and Human Services. It appears that you could have addressed the core issue without making the argument that Roe should be overturned."

"Why did you feel it necessary to make that argument?"

"Do you continue to believe that Roe should be overturned?"

Judge Roberts: "I appeared as one of nine government attorneys on the brief for the federal respondent in Rust v. Sullivan. The purpose of that brief was to defend the challenged Health and Human Services program. The program was challenged on the ground that regulations issued under the program impermissably burdened the abortion right. It was the position of the Federal Government at that time, as expressed in briefs filed in five previous cases cited in the Rust brief, "[i]f Roe is overturned, petitioner's contention that that....regulations burden the right announced in Roe falls with it." Br. for Resp. at 13."

"I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of a client. Roe is binding precedent and, if I were confirmed as a circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so."

Over and over and over again, Judge Roberts insists that "nothing in [his} personal views would prevent" him from enforcing the "settled law of the land" regarding Roe v. Wade. Yet those "personal views" are never revealed. But over and over and over again, Judge Roberts also insists that it is not "proper to infer a lawyer's personal views from the position taken on behalf of a client."

Why is he hiding his "personal views"? Why can't he just answer the freaking question? There are many judges and politicians that are against abortion because of religious or personal beliefs - such as former New York Governor Mario Cuomo, Senator John Kerry, and even Attorney General Alberto Gonzales - but who have had no problem upholding or affirming the "settled" laws of the land.

What's this judge hiding?

One thing is for sure. Not everyone in Judge Roberts' immediate family is so guarded.

"Jane Sullivan Roberts has extensive ties to the conservative group Feminists for Life. As late as 1998, Mrs. Roberts was the group’s Executive Vice President. In 2001, she was identified as the “FFL board counsel,” and in the Summer 2002 FFL quarterly, The American Feminist, Roberts is listed as a member of the “Elizabeth Cady Stanton Circle” of fundraisers, who have raised between $1,000-$2,499 for the organization."

Don't be fooled. Judge John G. Roberts' biography may claim that the G. stands for Glover, but "Guarded" it is.

(Slightly off topic, included in the pdf are questions regarding Judge Roberts' "Financial Data and Conflicts of Interests." Judge Roberts responds that he was a member of Lawyers for Bush-Cheney and the Executive Committee of D.C. Lawyers for Bush-Quayle '88 though he claims that he "did not have any substantive responsibilities.")

Contributors

"Or take this guy, Ron Brynaert, a tenacious (lefty, stand alone) investigator with an instinct for where information and proof and the jugular are. He's a natural: Why isn't he on someone's I-team?" Jay Rosen, June 6, 2005.